Page:The English Reports v1 1900.pdf/1380

son or sons of mine, lawfully begotten, hereafter to be born, shall die without issue male, etc. then and in such case, if it shall so happen, I give and devise the remainder of all, etc. to my brother Thomas Morgan for his life, etc.

Great abilities however, and great fertility of invention might say, that this testator had not the sons of any future marriage in contemplation; which was in a manner to say, that he had only in contemplation the sons he had already by Lady Rachael, or should hereafter have by her. But where was there one syllable in this will, which so far abridged the expression, any son or sons of mine hereafter to be born, as to make it mean only son or sons of the testator thereafter to be born by Lady Rachael? Let every clause, let every sentence, let every word, let every syllable of this will be scanned and examined with the most minute and critical attention, nay, let them be warped into every shape, and tortured in every mode that could be thought of, it would not be possible to find any thing which could favour such an exposition. But the words are, "any other son or sons of mine hereafter to be born as aforesaid." And how was it before said, that the sons of whom it was predicated before, were to be begotten? Why, it was predicated of those sons, that they were to be lawfully begotten. It was natural that the testator should exclude all sons who were not born in lawful wedlock, and therefore he could mean to introduce by the words as aforesaid, nothing else than lawfully begotten.

But it is said, that he made his wife guardian of his children after his death, and therefore could have no thoughts of surviving her, so as to marry a second wife? and he knew he was a dying man, for he died in three weeks after the date of his will.

True: he did make his wife, with four other persons in whom he had confidence, guardians of his children. A guardianship is an authority coupled with an interest, and will therefore survive. The devise therefore amounted to this, that he thereby directed, that the wife and the said four other persons, or [352] the survivors or survivor of them, should be the guardians of his children, but it nowhere necessarily imported that his wife should be one of those survivors; he must know that she had the same chance of dying in his life-time as any other of her co-guardians had; and if she had died either in the life-time of the testator, or of any of the other guardians, the appointment would have stood good to the others, and the guardianship surviving, the children would have been properly taken care of; so that the inference from this circumstance, of appointing the wife a co-guardian with other persons, afforded not the least argument for what it was adduced to prove. Then as to the testator's being conscious that he was a dying man: what place was there in the will from whence it could be made apparent that he had this consciousness? Or from whence did it appear that he had the least impression upon his mind that he was a dying man? He did not in any part of his will say, that he was languishing in his health, or that he was infirm in his body; on the contrary, he said, that he was of sound mind, memory, and understanding; for a perfect sanity, a firm soundness of mind, it is commonly understood that there must be mens sana in corpore sano; and here, as conscious as he might be of approaching death, he supposed that he might live to see some of his four children, all then infants under six years of age, attain the age of 21; for in the appointment so made by him of guardians to his children, he said he appointed those persons guardians of such and so many of his children, as should be under age at the time of his death; which undeniably supposed, that he thought it possible, at that very time, to live till some of his children should attain that age; thus looking forward, as it were, to a period of 14 or 15 years at the very least.

It is still further objected, that the brother Thomas Morgan, was not by the will to take these estates, otherwise than subject to the provisoes contained in the marriage-settlement of 1723; therefore by the words, any other son or sons of mine hereafter to be born, the testator must mean nothing but the son or sons of him by Lady Rachael, who were to be takers by that settlement.

But here is a conclusion not contained in the premises, and here are premises which do not warrant the conclusion. Thomas the brother was to take the lands in reversion, which were comprised in the settlement of 1723, subject to the provisoes and payments directed or contained in that settlement; but not under or by virtue of the uses or limitations therein contained. If Lady Rachael survived the testator, Thomas the brother was to take the lands subject to her jointure, and to the powers of distress and entry thereby given for recovery thereof; and subject also to the payment of the mainten-